Overview of U.S. Immigration Law & Procedures for...

Ieva AubinAssociate Attorney

Dorsey & Whitney LLP

Overview of U.S. Immigration Law & Procedures for Employers

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Government Agencies Involved

• Department of Homeland Security (DHS)U.S. Citizenship and Immigration Service (USCIS)U.S. Immigration & Customs Enforcement (USICE)U.S. Customs & Border Protection (USCBP)

• Department of Labor (DOL)Office of Foreign Labor CertificationPERM Processing CentersState Workforce Agencies (SWAs)

• Department of State (DOS)U.S. Embassies & Consulates Abroad

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Terms & Definitions

U.S. Nationals:• (A) a citizen of the

United States, or

• (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States.

Aliens:• Immigrant (Lawful

Permanent Resident or “Green Card” Holder)

• Non-immigrant

• Undocumented

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U.S. Citizens

• Generally acquired because:– Born in the U.S./territory – Parent is a U.S. citizen– “Naturalization”

• Can vote

• Difficult to lose citizenship

• Dual Citizenship allowed by U.S. Government

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Lawful Permanent Residents(Immigrants or “Green Card” Holders)

• Can live and work in the U.S. indefinitely

• Cannot vote in public elections

• Can become U.S. citizens after 3 - 5 years

• Can lose it due to:

– Extended absence from the U.S.

– Certain crimes

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Paths to Permanent Residency

• Family

• Employment

• Diversity Lottery

• Refugee/Asylum

• Special Legislation

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Employment-Based (EB) Categories

EB-1: Extraordinary ability aliens, outstanding researchers, multinational executives or managers

EB-2: Advance-degree professionals & aliens of exceptional ability*

EB-3: Professional, skilled & unskilled workers*

EB-4: Special Immigrants

EB-5: Investors

* requires labor certification7

Process Overview

1. Labor certification (where required)• Filed by employer • Processed under PERM system by the DOL

2. Immigrant Preference Petition (I-140)• Generally filed by employer • Some foreign nationals can self-petition• Processed by USCIS

3. Application to Adjust Status (I-485) or Immigrant Visa Application (DS-230)• Filed by the foreign national & family members• Processed by USCIS (I-485) or DOS (DS-230)

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Step 1: Labor Certification

• Purpose is to protect U.S. workers

• DOL will only certify if:– there is a shortage of qualified, available & willing U.S. workers for

the position– employment of the beneficiary will not adversely affect the wages &

working conditions of similarly employed U.S. workers

• Employer must:– Complete recruitment to determine that there are no willing,

available, qualified U.S. workers for the position– Adhere to strict regulatory requirements

• PERM process different from real world!

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Step 2: Immigrant Petition

• Demonstrates employer’s commitment to employ the foreign national.

• Employer must establish that it has had the ability to pay the wage listed in the LC application since filing that application.

• Employer must also demonstrate that the foreign national met all of the job qualifications at the time the LC application was filed.

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Step 3: AOS or Consular Processing

• EB Visas are subject to numerical limitations.

• The availability of Visa numbers is determined by:– foreign national’s priority date– preference category– country of birth

• Long waiting period in certain heavily oversubscribed categories.

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June 2014 Visa Bulletin

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Non-Immigrants

• Temporary entry to the U.S. for a specific purpose

• Non-immigrant intent required (dual intent - only for H’s and L’s)

• “Alphabet Soup”

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Visitor Visas

• B-1 Visitor for Business

• B-2 Visitor for Pleasure/Tourism

• Visa Waiver Program (VWP)

• No employment/productive work allowed (some exceptions: meetings, conferences, negotiations, after-sales service)

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F-1 Students

Cannot work off campus, except:

• Curricular Practical Training (CPT)– usually 20 hrs/wk; must relate to field of study

• Optional Practical Training (OPT)– usually post-graduation, full-time work related to field of

study; – employment authorization card required; – generally lasts 12 months; 17-month extension available to

graduates of science, technology, engineering, mathematics (STEM) fields if employer enrolls in E-verify

• Severe economic hardship

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J-1 Exchange Visitor

• Requires sponsorship by an Exchange Visitor Organization

• Categories include interns, trainees, scholars, students, physicians, Au Pair, etc.

• J-1 Students can get practical training (similar to OPT)

• Some people may be subject to “2 year foreign home residency requirement”

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H-1B Worker

• “Specialty Occupation” - position must require at least a bachelor’s degree in a relevant field, or equivalent, and the employee has such a degree or equivalent.

• Employer must first file “Labor Condition Application” with the DOL (no external advertising necessary) which certifies that:– The employer will pay at least the actual or prevailing wage;– Working conditions will have no adverse effect on U.S.

workers;– No strike or lockout is in progress;– The employer has notified the bargaining representative if the

job is unionized, or has posted a notice that an LCA was filed.

• Tied to the Employer.18

H-1B Worker Cont’d

• The prevailing wage is determined based on the position and the geographic location.

• The DOL maintains a database with applicable current prevailing wage levels based on occupation and work location.

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H-1B Worker Cont’d

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H-1B Worker Cont’d

• Six-year maximum stay (can extend under certain circumstances - AC-21).

• Once H-1B employment ends, the foreign national must leave the U.S.

• Employer is responsible for reasonable costs of return transportation for dismissed employee.

• Spouse and children (H-4) not eligible to work.

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H-1B Cap

• 65,000 new H-1Bs per fiscal year.

• Additional 20,000 for those with U.S. Master’s degrees or higher.

• Cap does not apply to extensions, change of employer.

• Submission window period starts April 1 of each year for the fiscal year starting October 1 of the same year.

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H-1B Cap FY 2015

• USCIS received about 172,500 H-1B petitions during the filing period (April 1-7, 2014), the highest number of H-1B filings ever.

• 51% of FY 2015 H-1B Petitions Rejected in Lottery.

• By comparison, in the previous years, the H-1B cap was reached:

H-1B 2008 (FY 2009 cap) April 7, 2008

H-1B 2009 (FY 2010 cap) December 21, 2009

H-1B 2010 (FY 2011 cap) January 26, 2011

H-1B 2011 (FY 2012 cap) November 22, 2011

H-1B 2012 (FY 2013 cap) June 11, 2012

H-1B 2013 (FY 2014 cap) April 5, 201323

L-1 Intracompany Transferee

• Qualifying corporate relationship between the U.S. & foreign entities required (parent, subsidiary, affiliate, branch office).

• Prior employment abroad: one out of the last three years:– Executive– Managerial– Specialized Knowledge

• Nature of U.S. Position:– Executive– Managerial– Specialized Knowledge

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L-1 Intracompany Transferee Cont’d

• Employers must generally first file a petition with the USCIS.

• Canadians can apply at the port of entry.

• L-1 Blanket petitions are available for certain multinational companies.

• 5 (L-1B-specialized knowledge) or 7(L-1A-executive/manager) years maximum.

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TN NAFTA

• Available only for certain Canadian and Mexican professionals (e.g. systems analysts, engineers, management consultants, etc.).

• Canadians can apply at the port of entry.

• 3 years maximum at a time.

• For very “temporary” work.

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E-1 (Treaty Trader), E-2 (Investor), E-3(Australian Professional Worker)

• Treaty-based/available to citizens of only certain countries

• E-3 is much like H-1B

• Good 2 years at a time /extendable for an indefinite period

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Compliance & Enforcement

• Increased Worksite Enforcement by USICE– Form I-9 compliance– Potential consequences include criminal

prosecution, administrative sanctions and debarment

• Increase in fraud investigations and unannounced site visits by USCIS

• In case of audit/site visit, call counsel immediately for advice

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Questions?

Ieva Aubin

(206) 903-2458

aubin.ieva@dorsey.com

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Disclaimer

This presentation was created by Dorsey & Whitney LLP, Kearns Building, 136 South Main Street, Suite 1000, Salt Lake City, UT 84101. This presentation is intended for general information purposes only and should not be construed as legal advice or legal opinions on any specific facts or circumstances. An attorney- client relationship is not created or continued by sending and/or receiving this presentation. Members of Dorsey & Whitney will be pleased to provide further information regarding the matters discussed in this presentation.

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